How Dare Elena Kagan Criticize the Three-Fifths Compromise?


So the Constitution, as it was originally written, was racist. Let's just get that out there.

Slavery, yes. It was acknowledged and accepted in the document. Representatives and taxes were apportioned according to population, except "all other Persons"--non-free persons, i.e. slaves--were counted as three-fifths of people. This was a compromise necessary to get the thing ratified, if my memory of high school history class serves. The Constitution didn't mandate slavery, but it accommodated it, to some extent, by adapting the nascent system of government to slavery's existence in certain states. It was agnostic to the practice. This is history. Pointing it out should not be controversial.

The Republican National Committee, however, in its zeal to deliver quick blows to Elena Kagan's nomination as a Supreme Court justice, seemed to overlook that detail about our Constitution.

In his official statement reacting to Kagan's nomination, RNC Chairman Michael Steele hit Kagan for suggesting that the Constitution was "defective" as it was originally drafted.

"Given Kagan' for statements suggesting that the Constitution 'as originally drafted and conceived, was "defective,"' you can expect Senate Republicans to respectfully raise serious and tough questions to ensure..." Steele said.

Steele was quoting Kagan's quotation of Thurgood Marshall in a Texas Law Review article from 1993. Marshall was the one to state that the Constitution was "defective" and had required subsequent amendments and a Civil War to get it ironed out. Kagan agreed with Marshall's view, and went on to say that "our modern Constitution is his"--giving Marshall credit for interpreting the document in a modernized way and shaping its function.

Modernizing the Constitution, of course, sets off alarm bells, especially for conservatives. People don't want the document "modernized" by activist courts; they want it adhered to.

Liberal commentators jumped on Steele's comment. Media Matters asked why Steele was "defending slavery," and the Democratic National Committee was happy to forward all this along.

RNC Communications Director Doug Heye sought to clarify things on the RNC's blog. Steele admires Marshall, Heye wrote, and his criticism was "about how Elena Kagan, who is being nominated for a lifetime appointment to the highest court in the land, views the role of the courts in our society."

Valid point. Then again, Steele's comment was also meant to imply that Kagan may or may not be radically out of line with the Constitution itself.

It's kind of inevitable that the law belongs to certain judges and justices, as Kagan suggested in her original article, because they're the ones who define how it's interpreted. And it's easy to see how Steele would get criticized for, as he seemed to do, suggesting that the Constitution was perfect, by today's standards, when it was written over 230 years ago. It's okay to change it, after all, if enough people agree. That's in there, too.
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Chris Good is a political reporter for ABC News. He was previously an associate editor at The Atlantic and a reporter for The Hill.

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